States Await High Court's Red River Ruling

DALLAS – A U.S. Supreme Court ruling on Texas’ right to draw water from Oklahoma could have a major impact on interstate water compacts across the nation, experts said.

The court last week heard arguments in Tarrant Regional Water District v. Herrmann, with a ruling expected in June. The court could also kick the case back down to the 10th Circuit Court of Appeals for further clarification.

At issue is whether the Tarrant district can acquire additional water from Oklahoma to supply the growing metropolitan population of Texas.

Fundamentally, the case boils down to a fight between Oklahoma and Texas over the Red River’s water -- the lead named defendant, Rudolf Herrmann, is a member of the Oklahoma Water Resources Board.

The Texas district claims that an Oklahoma law barring other states from taking the state’s water is unconstitutional under the Interstate Commerce Clause. In addition, it argues, the court must interpret the 1980 Red River Compact that provided each of the four states that use the river an equal 25% share of the water. Arkansas and Louisiana are also part of the compact. They’ve sided with Oklahoma in the case.

The Red River Compact Commission consists of nine members -- two members from each of the four states and a federal representative appointed by the president. The federal commissioner is a non-voting member and serves as chairman when the commission meets once a year.

The Tarrant district filed applications for three Oklahoma water permits in 2007, the most controversial of which would have allowed the district to pipe water from the Kiamichi River, upstream from the Red River.

The Fort Worth-based district serves customers in an area with 1.7 million residents.

The upstream water is preferred because it is less saline than that in the Red River. Oklahoma and the other states also contend that removing upstream flows would make the Red River even more salty.

The Tarrant district proposed damming the Kiamichi just upstream from the Red River, building a pump station and pipeline and transporting the water from Oklahoma to Texas. The Tarrant district also sought assurance that Oklahoma would release enough Kiamichi River water from another dam upstream to make its investment worthwhile.

While Texas claims that it is not receiving its 25% share of the water, Oklahoma maintains that the Lone Star State is taking more than its share. In oral arguments last week, the justices identified flaws in the compact that was designed to prevent litigation between the four states.

“In other compacts, when they really mean to give one state the right to another state’s water, the provision in the compact is much clearer, more definite,” Justice Ruth Bader Ginsburg said.

Attorney Sidney F. Ansbacher, a water law expert at Gray Robinson in Jacksonville, Fla., said the court appeared to be taking a narrow view of the contract language, rather than a broader view of state sovereignty and constitutional issues.

“If the Court wants to do so, it can address the language as a traditional contractual analysis of ambiguities,” Ansbacher said. “If, however, it chooses to fill in perceived blanks by saying we default to interstate commerce law where the compact does not address the issues, then all bets are off.”

Ansbacher said the most sweeping recent Supreme Court ruling on water was between North and South Carolina, a 5-4 decision in 2010 that involved access to the Catawba River and granted Duke Energy equal standing to the two states.

“Whichever way they go, I will be virtually flabbergasted if they decide to go big picture,” Ansbacher said of the Texas-Oklahoma case. “Virtually no one seems to think they want to make a big point.”

A decision favoring Texas on the broad issues could spawn lawsuits asking courts to re-open some of the 30 compacts that govern how states share water, attorneys say. Colorado, Idaho, Indiana, Michigan, Nevada and Utah filed a brief in favor of the Oklahoma side that supports that argument.

“States do not enter interstate compacts to sacrifice their sovereignty,” the seven states wrote in the brief. “They do so to exercise their sovereignty.”

The Tarrant district told the court that almost “every major” water source in the western U.S. is governed by an interstate compact that contains the same “boilerplate” language that the 10th Circuit said exempted the Red River Compact from the Constitution’s Commerce Clause.

If that finding is upheld, “virtually every state west of the Mississippi” will be authorized to enact “protectionist” water laws that could dismantle such interstate compacts, the Tarrant district argues.

Objecting to the Tarrant district’s dismissal of some compact requirements as “boilerplate,” the opposing states’ brief asserted that “If this kind of language can be renegotiated through litigation, the certainty and stability that interstate compacts are designed to promote would be called into question.”

The court of appeals ruled that the Red River Compact entitles each of the four states only “to use up to 25% of the excess water in its state,” but not to divert any water outside its own boundaries.

In a brief filed in support of the Texas argument, the U.S. government noted that “the text of the compact contains no state-boundary restriction on a state’s exercise of its equal right to use the excess water” in the sub-basin that includes tributaries to the Red River.

“By contrast, other compact provisions that divide multi-state sub-basins between States do include a state-boundary restriction, which suggests that no similar restriction was intended” in the Red River Compact, the brief stated.

Regardless of how the Interstate Commerce Clause was applied, the compact would trump any state law banning use of water flowing into the river from any side of a state boundary, the brief asserted.

Although the proposed pipeline to Oklahoma would be an expensive proposition, it would be less costly than some alternatives, according to the Tarrant district. Fort Worth and Dallas are just 50 miles south of the Red River. Water districts serving the two cities are breaking ground this year on a $2.3 billion pipeline that will pump water 150 miles from Lake Palestine in East Texas.

The thirsty cities of Texas are increasingly relying on pipelines to draw water from distant reservoirs as regulatory hurdles make building new reservoirs increasingly difficult.

In the oil-rich Permian Basin region of West Texas, the city of Midland is building a 60-mile pipeline from the T-Bar Ranch in Loving County to deliver groundwater by May 31, when the city is expected to run out of water. The city created a new bond issuer to finance the $200 million project.

With a population expected to double in the next 50 years, Texas has developed a water plan that calls for $53 billion of investment in water projects over that time.

As the Texas-Oklahoma dispute awaits resolution, Texas is also seeking a Supreme Court ruling in a separate lawsuit against New Mexico.

In January Texas asked the U.S. Supreme Court to hear its complaint that New Mexico has been diverting water it is obligated to send downstream under the 75-year-old Rio Grande Compact.

The Rio Grande Project, a system of dams and canals that retains water at the Elephant Butte and Caballo reservoirs in New Mexico and delivers it to farmers in southern New Mexico and West Texas, is at the heart of that dispute. The compact among Colorado, New Mexico and Texas settled years of litigation by establishing a formula for allocating the river’s water to various users.

But Texas claims that by allowing New Mexicans to drill nearby wells and pump water from the river, “New Mexico has changed the conditions that existed in 1938 when the compact was executed.”

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